39:0278(20)AR - - Treasury, Customs Service, NY, NY and NTEU - - 1991 FLRAdec AR - - v39 p278
[ v39 p278 ]
The decision of the Authority follows:
39 FLRA No. 20
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
NEW YORK, NEW YORK
NATIONAL TREASURY EMPLOYEES UNION
January 31, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Susan L. Grace filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Union filed two grievances which were consolidated for arbitration. The Arbitrator sustained the first grievance, which contested the Agency's decision to reassign the grievant from a GS-9 Customs Inspector to the position of Mail Specialist, and ordered the Agency to rescind the grievant's reassignment. The Agency excepts only to this aspect of the award. Inasmuch as no exceptions were filed to the Arbitrator's award concerning the second grievance, in which the Arbitrator reduced a 14-day suspension of the grievant to 5 days and ordered the Agency to restore the grievant's lost pay, we will not review that part of the award.
For the reasons stated below, we deny the Agency's exceptions to the award.
II. Background and Arbitrator's Award
By letter dated December 22, 1988, the Agency advised the grievant, a GS-9 Customs Inspector, that he would be permanently reassigned on January 1, 1989, to the position of Mail Specialist. In response to the Union's request that the Agency explain the rationale for the reassignment, the Agency stated that the reassignment was "to promote the best interests of the Customs Service." Award at 4.
On January 11, 1989, the Union filed a grievance contesting the grievant's reassignment. Subsequently, the Union invoked arbitration concerning the reassignment.
The third-step grievance response by the Agency cited the following bases for the reassignment: (1) four complaints from members of the public alleged that the grievant had used foul and vulgar language, treated an individual in an insulting manner, or was rude or discourteous to the public; (2) after the grievant had received a notice of proposed suspension, the grievant spoke to the Newark Area Director's secretary in a rude and discourteous manner; and (3) a statement from a psychiatric report suggested that the grievant's behavior could be viewed as rude and frightening to others. The Arbitrator stated that, although not mentioned in the third-step response, the grievant had received an official reprimand on September 29, 1987, for his behavior in the incidents referred to in item (1) above and, on December 22, 1988, had received an official reprimand for his failure to behave in a professional manner with respect to item (2) above.
The parties were unable to agree on the issue to be decided by the Arbitrator. The Arbitrator framed the issue as follows:
1. Did the involuntary reassignment of [the grievant] constitute a violation of Article 20, "Assignment of Work", of the National Agreement?
2. If so, what is the appropriate remedy?
Id. at 2-3.
The Arbitrator found that the parties' collective bargaining agreement
was clear in its description of the latitude given to management in the area of
reassignments to promote the interests of the Agency. In summarizing Article 20
of the parties' agreement, the Arbitrator stated that "the employer can
reassign an employee in order to respond to workload needs or for other
legitimate reasons, including correcting or minimizing an employee's
performance deficiency." Id. at 8. The Arbitrator further stated that
the parties' agreement "also specifies that the employer may reassign an
employee for disciplinary reasons, however, a reassignment for disciplinary
reasons will be made only when the due process procedures of Article 28 have
The Arbitrator determined that the evidence in this case supported the finding that the grievant had demonstrated a performance deficiency in his ability to deal effectively with people. The Arbitrator found that the grievant's abrupt and argumentative demeanor at the hearing further supported the Agency's position. The Arbitrator stated that, in spite of these concerns, the grievant's "performance evaluations during these periods reflect successful performance as a Customs Inspector." Id.
The Arbitrator stated that even though the grievant demonstrated questionable behavior, the reassignment "was in fact a disciplinary measure." Id. at 9. The Arbitrator determined that the incidents "cited in the September, 1987 reprimand served as primary reasons for the reassignment" and that the "situation involving [the Newark Area Director's] secretary was cited as additional support for the reassignment and [the grievant] was reprimanded for this incident on the same day of his notification of reassignment." Id. The Arbitrator stated that "the incidents supporting the reprimands and the reasons for the reassignment are indistinguishable." Id. The Arbitrator found that
[w]hile management may have sought to correct or minimize a performance deficiency in reassigning [the grievant], in light of the other disciplinary actions taken against [the grievant] and management's failure to address their concerns in the evaluation process, it appears that the reassignment was used as a further means of discipline, and the procedures of Article 28, 'Employee Conduct and Discipline' should have been followed.
With respect to a remedy, the Arbitrator denied the Union's request that the grievant's authority to carry a firearm be restored, finding that this matter has no bearing on the circumstances that resulted in the grievant's reassignment. The Arbitrator also denied the Union's request for backpay in the amount of $20,000 because of insufficient proof that the grievant had actually suffered the asserted damages. As her award, the Arbitrator stated:
1. The involuntary reassignment of [the grievant] from Customs Inspector to Customs Mail Specialist was for disciplinary reasons. Therefore, the employer's failure to follow the negotiated due process procedures in effecting the reassignment constitutes a violation of Article 20, 'Assignment of Work.'
2. The Employer is directed to rescind the reassignment of [the grievant].
Id. at 9-10.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is contrary to section 7106(a)(2)(A) of the Statute in that "it usurps management's right to assign work" and that the award also violates section 7106(a) "by infringing on management's right to determine specific job qualifications and skills." Exceptions at 1. The Agency maintains that an arbitrator may not interpret or enforce a collective bargaining agreement so as to improperly deny management its rights under section 7106(a) of the Statute. Specifically, the Agency argues that the Authority has consistently held that the right to assign employees under section 7106(a)(2)(A) of the Statute includes "the right to assign employees to positions; the right to determine the particular qualifications and skills needed to perform the work of those positions, including such job-related individual characteristics as judgment and reliability; and the right to determine whether employees meet those qualifications." Id. at 3. The Agency argues that its decision to "reassign [the grievant] to the position of Mail Specialist . . . is a lawful exercise of its right to determine the qualifications and skills of a Customs [I]nspector." Id.
The Agency also argues that the "Arbitrator's decision to rescind the reassignment of [the grievant]" is "an impermissible interpretation of the agreement, and should be set aside." Id. at 4. In this regard, the Agency argues that the Arbitrator's reasoning that the reassignment was not in accordance with the parties' agreement "seems to be that the Agency's disciplinary intent in connection with the reprimand, somehow imbued the reassignment with a similar purpose." Id. The Agency argues that "there is no impediment to the Agency taking two actions based on the same misconduct - one to discipline the employee and the other to correct a performance deficiency and protect the public." Id.
B. Union's Opposition
The Union contends that the Arbitrator's award is not contrary to law and should be enforced. The Union asserts that the Arbitrator simply enforced "certain procedures and appropriate arrangements which have already been negotiated by the parties--i.e., that '[r]eassignments will be made for disciplinary reasons only when the procedures set forth in Article 28 have been followed.'" Opposition at 4. In this regard, the Union argues that the Authority has consistently upheld arbitration awards where an arbitrator enforces a contractual procedure or appropriate arrangement limiting a management right.
IV. Analysis and Conclusions
A. The Arbitrator's Award Is Not Contrary to Law
In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a). We held that when an agency makes such a contention we will examine, as appropriate, the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we held that we will not find that such an award is contrary to law and we will deny the exception. We also held that if the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected. Finally, we noted that the arbitrator's interpretation must draw its essence from the parties' collective bargaining agreement.
Applying that approach in this case, we conclude that the Agency fails to establish that the award is contrary to section 7106(a) of the Statute. It is evident that Article 20 constitutes an arrangement and, as interpreted and applied by the Arbitrator, does not abrogate management's right to assign its employees.
Article 20 provides that when reassignments are made for disciplinary reasons, the procedures in Article 28, Employee Conduct and Discipline, must be followed. See Award at 8; Opposition at 3. It is clear that Article 20 constitutes an arrangement for employees adversely affected by management's exercise of its right to discipli